BCI May Allow Persons With Other Jobs To Provisionally Enrol As Advocates On Undertaking To Resign From Job Within 6 Months After Clearing AIBE : Supreme Court

While hearing the Bar Council of India's ("BCI") challenge to the judgment of the Gujarat High Court, which allowed persons with other employments, whether full time or part-time, to enrol as Advocates without resigning from their jobs, a Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh had on a couple of occasions made suggestions pertaining to the quality of legal education; shortcomings of the Bar Examination; chamber placement of young lawyers.

Senior Advocate, Mr. S.N. Bhat appearing on behalf of BCI had filed an affidavit apprising the Bench on the issues flagged by it. Amicus Curiae, Mr. K.V. Vishwanathan had also submitted his suggestions by way of a note.

Enrolment for candidates pursuing employment - Roll No. and AIBE

On previous occasions, the Bench had insisted that the BCI should consider balancing the requirement of the Bar Council to resign from current employment at the time of seeking enrolment and the difficulties of such candidates who are apprehensive of leaving their jobs even before appearing in the All India Bar Examination ("AIBE"). The Amicus, inter-alia, suggested that candidates with a job can be issued a roll number to take the examination, and can seek enrolment thereafter. It was also stated that a viva examination can be conducted for such candidates.

Though the BCI had assured the Bench that it would look into the said aspect, it seemed to be anxious considering the fact that the Apex Court had ruled against compulsory internship being a pre-qualification for enrolment in V. Sudeer v. BCI (1999) 3 SCC 176.

The Bench noted that the AIBE was introduced subsequent to the judgment as a prerequisite to be enrolled as an advocate. The provisional enrolment has a limited validity and an undertaking is to be provided by the Advocate that the same would be valid till he qualifies the AIBE within the stipulated time. It clarified -

"The right to be enrolled arises from graduation and law degree, but subject to clearance of AIBE. Right to practice under Chapter 4 of the Advocates Act would not come into force immediately but would arise only after clearance of the AIBE exam….A person graduating in law does not get immediate right to practice before clearing the AIBE exam. It is provisional enrolment with limited validity upon undertaking given by the candidate. The objective of provisional enrolment is to facilitate writing of AIBE."

In this regard, Mr. Vishwanathan had suggested that provisional enrolment number is to be maintained in two separate registers. The 'B' register would be for candidates who are pursuing full-time employment after graduation. Such candidates would be required to undertake that they would not be entitled to practice till they are employed.

The Bench was of the view -

"Their employment would be an impediment in being enrolled to practice. But it should not be an impediment in taking the examination."

It was observed by the Bench that the BCI Rules contemplated that persons who are entitled to practice cannot pursue other employment and if they are engaged in employment they would not be allowed to practice as an Advocate during the period of such employment. The Bench stated -

"Thus, a person who obtains the provisional enrolment to be entered in a B Register with continuing wish for existing profession/employment unless they attain to AIBE cannot insist on their being an existing right to practice merely on obtaining such a provisional enrolment in view of the bar created against practice on the account of the employment."

As a balancing act, the Amicus had suggested that upon clearing the AIBE, a transitional period of 6 months can be given to such candidates, within which period they can submit an undertaking that they would give up their current employment and join the legal profession. The seniority of such a candidate would be considered from the date of giving of the undertaking.

The Bench accepted the suggestions provided by the Amicus and noted -

"We are inclined to accept the plea of the Amicus that the BCI may adopt the aforesaid process by giving provisional enrolment to enter in a B register with the appropriate undertaking that such enrolment would not be interpreted as a right to practice in the intervening period. This act of balancing would be in accord with the doctrine of proportionality as elucidated in the previous hearings by the Ld. Amicus and would not be in contradiction to the decision in V. Sudeer case…If the person continues to be in employment then they would have the requirement of taking the Bar exam again at the appropriate stage when they seek to give up employment and enrol themselves at the Bar. The period of 6 months suggested is good enough for a person to take a call whether they want to be in employment or continue the profession of law."

With respect to the issue of seniority the Bench observed -

"The other modalities like seniority being worked out on the basis as mentioned aforesaid. It should not be that a person takes the exam and continues in employment for a long period of time and thereafter seeks seniority on the basis of the exam taken years ago."

Advocates, Ms. Megha Jani and Ms. Anushree Prashit Kapadia appearing on behalf of Respondent no. 1 pointed out that there was another category of lawyers, who upon being enrolled at the Bar, get their licenses suspended to take up full-time employment. This category of people are permitted to come back and join the legal profession again without being subjected to a fresh Bar examination. The Bench thought this issue was fit to be deliberated upon and asked the BCI to apply its mind to the same. Mr. Vishwanathan highlighted that in cases where the advocates are appointed as public prosecutors their licenses are deemed to be suspended. He urged the Bench to direct the BCI to keep all these aspects in mind while considering the issue.

The Bench stated -

"This is an issue rightly flagged for BCI to consider. They have to look at scenarios, where a person may have a deemed suspension of license upon being appointed as public prosecutors or in judicial service. Those are categories by themselves. However, if a person takes full time employment in most other scenarios, whether they should be called upon to take the Bar Exam again in case they continue in service is something that the BCI may debate and come back to us."

Legal Education

In its affidavit, the BCI had stated that its Legal Education Committee and Advisory Board is keen to consider introducing State Level Entrance Test for admission to law colleges. BCI had also submitted that it had already earmarked about 500 institutions, which were found to be sub-standard. As stated in the affidavit, the Bench noted that a team of Judges and Senior Advocates has been formed to take steps regarding such institutions. It directed BCI to provide information regarding the composition of the team.

"We would like to be apprised of the composition of the same."

It was taken note of that for institutions found to be under par, BCI had decided to withdraw approval granted to them for running legal courses.

The BCI had submitted that it had established a Teachers Training Academy in Bhubaneswar and had constituted an Advisory Board for development of legal education and legal profession. The said Board, the Bench observed, consisted of CJI, sitting judges, advocates, VCs etc. It directed BCI to disclose its composition.

"Composition of the Committee may be disclosed. New Legal Education Rules are stated to be in progress….All that we expect is urgent attention to the issue so that the matter does not remain pending before the Committee for long."

As Advocate, Mr. Durga Dutt, appearing for BCI, requested the Bench to direct the State Governments to provide security to the team visiting the University Campuses for inspection. Accordingly, it directed -

"…we direct that wherever the inspection team visits the campuses, the State Government to provide adequate security. In case of non-cooperation…it can be brought to the notice of this Court."

Steps for Tightening AIBE

The BCI had apprised the Bench that for AIBE 16 held in 2021 only bare acts without comments were permitted and in the future it would enforce tougher testing parameters. The Bench stated that it had expected the suggestions provided by the Amicus and deliberate before it, like negative marking, etc. would be considered so that the same can be incorporated in the upcoming AIBE. The Bench noted that, in this regard as well, a High Level Committee has been constituted by BCI and sought particulars regarding its composition. Considering the Committee was constituted a year back and no report has been submitted till date, it directed a report to be submitted before the next date of hearing.

"Be have been informed that the Committee had been in existence for one year but no report has been received as yet. Persons manning the committee should appreciate the urgency of the matter and a report should be placed before us before the next date."

Placement for junior lawyers

The BCI had proposed to frame Rules whereby the young lawyers would be required to take an online objective test. On the basis of the result, the meritorious junior law graduates would be placed in the chambers of Senior Advocates or Advocates having 25 years of standing at the Bar. Other graduates will get placed under Advocates having 15-20 years of experience. This exercise would be subject to the validity and constitutionality of compulsory chamber placement to be determined by a High Powered Committee constituted by the BCI.

The Bench opined that not High Powered Committees, but effective committees are required to expedite the whole process. People who can devote more time to the cause ought to have been appointed, rather than appointing high profile officials, it remarked.

Mr. Vishwanathan pointed out the chamber placements might not be made compulsory, but the process can be incentivised. He suggested that the advocates who are willing to take a junior would be considered for chamber allotment, empanelment, contesting bar elections etc. He added that even though taking in 5 juniors might not be possible, at least one can be accommodated.

"Nobody is saying to make it compulsory, but you can incentivise it by saying that including chamber allotment, you will be considered on your willingness to take a junior. Empanelment for legal aid, empanelment for PSUs, even appointment to subordinate judiciary, higher judiciary and constitutional courts and designation, will be allowed to contest as office bearer. If you incentivise automatically it will come. We are only saying, for 18 months and pay a stipend depending on the area. Today it is only based on recommendation. This should at least be experimented. Five juniors no one wants to take, make it one junior for 18 months. My experience is that having a junior makes your performance better, you cannot do everything in this profession."

The Bench asked the BCI to consider the submission of the Amicus. It also requested and urged the Judges of the High Court to recruit young lawyers as law clerks.

"BCI has constituted a High Powered Committee to check legal and constitutional validity of compulsory chamber placement…submission of Amicus (in his notes) in this regard can be placed before the committee for consideration. Most High Courts have provision for law clerks. This is an opportunity for young lawyers to get guidance… At times these posts are not filled in. We request the Hon'ble Judges to give opportunity to younger lawyers by facilitating their working as law clerks based on selection of each judge."

[Case Title: Bar Council of India v. Twinkle Rahul Mangonkar And Ors. Civil Appeal No. 816-817 of 2022]

Citation : 2022 LiveLaw (SC) 414